This article discusses the recent case of In re Parentage of K.E., 2022 IL App (5th) 210236, involving a 604.10(b) evaluation, the need for a timely evaluation and cooperation of counsel in scheduling depositions. Without these things, a court order on parental responsibilities and parenting time could be reversed.
A couple of critical issues in divorce and parentage cases are who will make parenting decisions for a child and how much time the child will spend with each parent. Where the parties are in disagreement, the court may seek the advice of a professional to assist in determining the child’s best interest pursuant to 750 ILCS 5/604.10(b). Section 604.10(b) lays out parameters for the professional opinion and requires the professional to submit a written report with its conclusions and recommendations no later than 60 days before the commencement of the hearing. The report may be admitted into evidence without testimony, unless a party objects, and the 604.10(b) evaluator shall testify as the court’s witness and be subject to cross-examination.
The overall purpose of the evaluation is to help the court determine the best interest of the child, a proper parenting schedule and give insight and information as to whether the parents can share parental responsibilities and decision making. The 604.10(b) recommendation is accorded deference insofar as it is presumptively fair, objective, and neutral since the evaluator is the court’s witness, not a hired gun. However, the court is not bound to follow the opinion of the evaluator.
In K.E., the court appointed a professional to opine on whether it was in the best interest of the child to allocate equal parenting time and joint decision-making responsibilities between the parties. The father’s attorney sent notice of the 604.10(b)’s deposition on a Wednesday for a Monday deposition. The mother’s attorney was not available. The father’s counsel argued he tried to accommodate opposing counsel through email, but there was no response. Accordingly, the father’s attorney went forward with the deposition in the absence of the mother’s counsel. The deposition was then admitted as an evidence deposition, depriving the mother’s counsel of the right to cross examine the evaluator. After hearing the evaluator’s unrebutted opinion, the trial court ruled in favor of the father. The mother appealed and the 5th District Appellate Court reversed.
On appeal, the mother argued the court should not have admitted the evidence deposition of the evaluator because he was not “unavailable” under Rule 212(b). Under Rule 212(b), the evidence deposition of a physician or surgeon may be introduced in evidence at trial on the motion of either party regardless of the availability of the deponent, without prejudice to the right of either party to subpoena or otherwise call the physician or surgeon to attend trial. However, the evaluator was a psychologist, not a physician or surgeon. The father had to present evidence that the evaluator was unavailable or that counsel tried to procure his presence at trial. Because the evaluator was located outside of the county where the trial was to be held, he was deemed unavailable; thus, the evidence deposition would have been admissible under Rule 212(b)(2).
Nonetheless, the appellate court agreed with the mother that she was provided insufficient notice of the evaluator’s deposition and deprived the opportunity to cross-examine. The court held, under the unique circumstances of the case, the scheduling of the deposition five days after the notice was sent was not a reasonable amount of time pursuant to Illinois Supreme Court Rule 206(a).
While the 5th District panel refused to impose a bright line rule that at least seven days’ notice was required, as contemplated by Illinois Supreme Court Rule 204(a)(2), it held the father should have tried to resolve scheduling the deposition with opposing counsel under Illinois Supreme Court Rule 201(k). It should not have taken the deposition ex parte, which resulted in the mother not having the opportunity to cross-examine the witness.
Moreover, the appellate court was struck by the latency of the 604.10(b)’s report. The evaluator completed his report on Feb. 8, 2019. Trial was not conducted until April 26, 2021. The evaluator did not update his report within 60 days of the trial date. As such, the trial court’s reliance on the outdated report was an error.
Based on these procedural infirmities, the appellate court vacated the decision of the trial court with strong admonitions on remand, instructing the trial court to set a trial date within six months and imposing a case management framework. On remand, a new evaluation is to be performed and, upon request, depositions of the court-appointed professional should be taken for purposes of discovery, evidence, or both. Consistent with Rule 201(k), counsel in K.E., and all cases, are encouraged to “adopt a spirit of cooperation” with regard to discovery.
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